RODDA v. RODDA
Supreme Court of Oregon
November 30, 1948
Petition for rehearing denied January 5, 1949
200 P. (2d) 616 | 202 P. (2d) 638
Argued September 14, 1948. Motion to recall mandate January 21; motion granted February 8, 1949.
Joe P. Price and M. E. Tarshis, both of Portland, argued the cause and filed a brief for respondent.
LUSK, J.
The principal question on this appeal is whether a decree for separate maintenance rendered by a court
On March 17, 1945, the Circuit Court for Multnomah County, Oregon, in a suit for divorce brought by the plaintiff and respondent, Dr. James M. Rodda, and in which Mrs. Rodda, the defendant and appellant, sought a decree of separate maintenance based upon cruel and inhuman treatment, entered a decree in her favor of separation for an unlimited time from her husband’s bed and board with an allowance of $100.00 a month. In the year 1946 Dr. Rodda sued his wife for divorce in the District Court of the State of Nevada for the Second Judicial District, Washoe County, Nevada, and on June 19 that court awarded him a decree of divorce on the ground that he and his wife for three consecutive years immediately preceding the filing of such suit had lived separate and apart without cohabitation. (See
On December 13, 1946, Dr. Rodda filed in the Circuit Court for Multnomah County a motion, supported by affidavit, to vacate that part of the separate maintenance decree requiring him to pay his wife $100.00 a month, on the ground that the Nevada divorce wiped out that decree. There was an order to show cause why the motion should not be allowed, in response to which Mrs. Rodda filed a showing substantially to the effect
First. It is contended that the Nevada court acted without jurisdiction, and that its decree, therefore, is not entitled to full faith and credit under
We are dealing with a matter of federal cognizance, and it is today established by the most recent decisions of the Supreme Court of the United States that a divorce decree granted by a state to one of its domiciliaries is entitled to full faith and credit in its sister states even though the other spouse was given notice of the divorce proceeding only through constructive service; that jurisdiction depends upon domicil; and that, while the finding of domicil by the court that granted the decree is entitled to prima facie weight, it is not conclusive in a sister state but may be relitigated there, the burden of undermining the verity which the foreign decree imports resting upon the assailant. Estin v. Estin, 334 U. S. 541, 92 L. ed. 1078, 68 S. Ct. 1213, 1 A. L. R. (2d) 1412 (1948); Esenwein v. Commonwealth, 325 U. S. 279, 89 L. ed. 1608, 65 S. Ct. 1118, 157 A. L. R. 1396 (1945); Williams v. North Carolina, 317 U. S. 287, 87 L. ed. 279, 63 S. Ct. 207, 143 A. L. R. 1273 (1942), 325 U. S. 226, 89 L. ed. 1577, 65 S. Ct. 1092, 157 A. L. R. 1366 (1945). In our opinion the appellant has failed to sustain that burden.
The defendant’s evidence consisted largely in a showing respecting incidental and collateral matters, all of which together failed to show that Dr. Rodda did not, in good faith, acquire a Nevada domicil. Dr. Rodda himself admitted that he was aware that Nevada was a state in which divorce was comparatively easy to obtain, and that he went there with the intention of procuring a divorce. He had, however, other and more creditable reasons. He had made a special study of radiology at Georgetown University, and one of his professors there had told him that there was only one radiologist in the State of Nevada, and that Nevada should, therefore, be a good field for his practice. He arrived in Reno, Nevada, on March 26, 1946, and thereafter, for about two months, was employed there as assistant to the Nevada radiologist of whom his professor had told him. On April 23, 1946, Dr. Rodda filed an official application for a certificate authorizing him to practice medicine in Nevada, and therein stated his intention to reside in Nevada. On May 5, 1946, he successfully passed the Nevada Medical Board examination and was admitted to practice. From May 2 until November 22, 1946, he was employed as assistant by a firm of Reno architects. He registered as an elector in the State of Nevada and voted there in the
We are satisfied that Dr. Rodda established a bona fide domicil in Nevada. That being so, the fact that he went there for the purpose of procuring a divorce is immaterial. Walker v. Walker, 45 Nev. 105, 108, 198 P. 433 (1921); 3 Nelson, Divorce and Annulment, (2d ed.) § 33.34. The Nevada court, by virtue of Dr. Rodda’s domicil in that state, had jurisdiction in his suit to dissolve the marriage. On this branch of the case the court is unanimous.
Second. In view of the foregoing this court is required to hold that the parties to this suit are no longer husband and wife and have not been since June 19, 1946, the date of the Nevada decree. But the “full faith and credit” which Oregon must give to the Nevada decree does not compel a decision that the separate maintenance decree has been wiped out. That is a question of Oregon law. Such is the effect of Estin v. Estin, supra, decided June 7, 1948. That case involved a New York separate maintenance decree in favor of the wife, and a subsequent Nevada divorce decree obtained by the husband, as in this case, on constructive service. The husband later moved in the New York courts to terminate the alimony provisions of the separate maintenance decree by reason of the Nevada decree. The motion was denied and judgment granted the wife on her motion for arrears of alimony, which judgment was affirmed on appeal. 296 N. Y. 308, 73 N. E. (2d) 113 (1947). Certiorari having been granted by the
“The result of this situation“, the Supreme Court said, “is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony“. Estin v. Estin, supra, 334 U. S. at p. 549.
Three years before the Estin case, on May 21, 1945, the Supreme Court decided Esenwein v. Commonwealth, supra, on facts practically identical, except that the Pennsylvania court had found that the husband did not have a bona fide domicil in Nevada when he obtained his divorce. For that reason the court refused to relieve the husband from a prior Pennsylvania support order. The Supreme Court affirmed and said in the course of its opinion:
“Since, according to Pennsylvania law, a support order does not survive divorce, Commonwealth v. Parker, 59 Pa. Super. 74 (1915); Commonwealth v. Kur-niker, 96 Pa. Super. 553 (1929), the efficacy of the Nevada divorce in Pennsylvania is the decisive question in the case. * * * The Pennsylvania Supreme Court rightly indicated that if merely the Nevada decree had been in evidence, it was entitled to carry the day. But the Supreme Court found that on the entire showing there was convincing countervailing evidence to disprove petitioner’s intention to establish a domicil in Nevada.” Esenwein v. Commonwealth, supra, 325 U. S. at pp. 280, 281.
It is clear from the foregoing decisions that upon the question now presented this state is free to pursue its own policy uninhibited by federal constitutional restrictions. The courts, however, are not charged with the responsibility of shaping the state’s policy. That duty rests with the legislature. Our sole function is to construe the statute for the purpose of determining whether the provisions of the separate maintenance order and the altered status of the parties to this proceeding can coexist. We do not inquire whether the Nevada divorce decree of its own force terminates the Oregon decree, for the Supreme Court of the United States has held in the Estin case that it cannot; but we must determine whether, under Oregon law, the former husband is still obligated to support his former wife under that decree, notwithstanding the marriage relation has come to an end.
The separate maintenance statute,
It seems to us sufficiently obvious that what the legislature was concerned with in this act was the rights and duties of husband and wife as long as they continued to be such, and no longer. The statute speaks of a decree for the separation of “married persons“. The decree for maintenance is made to depend upon the decree of separation from bed and board. The latter could have no possible efficacy after a divorce (since then the parties could not lawfully cohabit), and neither, therefore, could the former.
In short, the marriage relation constitutes the foundation of the order, and, upon the dissolution of that relation, or at least upon a showing of that fact to the Oregon court, it must be held that the order has lost all vitality.
It is pertinent to advert to what this court said on the subject of alimony in Huffman v. Huffman, 47 Or. 610, 614, 86 P. 593, 114 Am. St. Rep. 943 (1906):
“* * * To understand the principle whereby alimony was given in divorce proceedings, a cursory examination of the rules originally applicable thereto in the country from which we derive the principles of common law may not be deemed inappropriate. In England, prior to 1858, no absolute judicial divorces were granted; but the ecclesiastical permitted legal separations, which were known as ‘a mensa et thoro‘: Stewart, Mar. & Div. § 200. courts, assuming jurisdiction of the marital relation,
as an incident of such divorces and based on the husband’s duty to support the wife, the church courts granted her, when she was not in fault, alimony, which consisted of an allowance that was measured by the social standing of the parties, proportioned by the wife’s necessities and to the husband’s financial ability, usually amounting to one half of their joint income; but, if there were children of the union, the allowance was generally limited to one third of such income: Stewart, Mar. & Div. § 362. The ecclesiastical courts having been abolished during the Commonwealth, the authority to award alimony was expressly conferred upon the equity judges, whose decrees in compliance therewith were ratified after the Restoration by an act of Parliament: 1 Bishop, Mar. & Div., § 1394. The law of England relating to marriage and divorce was brought by the colonists to this country, where the ecclesiastical courts were never recognized as possessing authority to allow alimony. As these immigrants did not bring their courts with them, the law adverted to, and which is here known as the unwritten or common law of the several States, remained in abeyance until called into activity by the creation of tribunals on which jurisdiction was directly or by implication conferred: Bishop, Mar. & Div., §§ 116, 121. A few courts of last resort in the United States have maintained that a grant of power to sever the marital relation carries with it by necessary intendment authority to allow permanent alimony in the absence of any enactment to that effect: Stewart, Mar. & Div. § 363. The great weight of judicial utterances, however, is to the effect that all authority to award alimony on decreeing a dissolution of the marriage must be found in the statute expressly conferring the right, which legislation is in general declaratory of the ecclesiastical law: 2 Bishop, Mar. & Div. § 1039; Stewart, Mar. & Div. § 364; Weber v. Weber, 16 Or. 163 (17 Pac. 866) (1888); Houston v. Timmerman, 17 Or. 499 (21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848) (1889).”
In Alexander v. Alexander, 13 App. D. C. 334, 45 L. R. A. 806 (1898), the court had occasion to review the subject of divorce and alimony at common law, and concluded its discussion by saying:
“Alimony has been defined to be ‘the allowance which a husband by order of court pays to his wife, living separate from him, for her maintenance. Bishop, Marr. & Div. § 549.’ Bouvier, Law Dictionary, title, Alimony. It is therefore, and it has always been held to be, apart from the express provisions of statutes authorizing divorce, an incident merely of separation by judicial decree from bed and board, and never of divorce from the bond of matrimony. See Crane v. McGinnis, 1 Gill & J. 463, 19 Am. Dec. 237 (1829). For at common law, and by the dictates of reason, in the absence of statutory enactment, to justify the allowance of alimony, the relation of husband and wife must continue to subsist, although the parties are separated from each other.”
The foregoing (quoted with approval in Holmes v. Holmes, 81 U. S. App. D. C. 132, 155 F. (2d) 737, 166 A. L. R. 1000 (1946)) harmonizes with the view of the law of this subject as heretofore enunciated by this court. See, also, Spain v. Spain, 177 Iowa 249, 252, 158 N. W. 529, L. R. A. 1917D 319, Ann. Cas. 1918E 1225 (1916); McCoy v. McCoy, 191 Iowa 973, 974, 183 N. W. 377 (1921).
There are two sources of power in this state for
By the enactment of
Those courts which, as it seems to us, have given the question the best consideration, having in mind the nature of alimony as incident to a judicial separation, have held that a decree for separate maintenance cannot survive a subsequent decree of divorce. In Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227 (1852), it appeared that the parties were married in South Carolina and later moved to Alabama. The wife was forced to leave her husband by his ill-treatment of her and returned to South Carolina, where she sued him for separate maintenance. He appeared in the case and contested it. The court granted her a decree. Subsequently the husband sued for and was granted a divorce in Alabama on the ground of abandonment. Service was by publication. After his death the wife brought an action of debt in Alabama to recover upon her South Carolina judgment for maintenance, and it was held that she was entitled to recover the arrears up to the time of the Alabama divorce but not beyond, the court saying (20 Ala. 649):
“We are of the opinion that both decrees may stand, so far as in their results they are not incompatible with each other. The subject-matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object, puts a period to the operation of the first, which is necessarily dependent upon that relation.”
In McCullough v. McCullough, 203 Mich. 288, 168 N. W. 929 (1918), upon a similar state of facts, the Michigan
In Bloedorn v. Bloedorn, 64 App. D. C. 199, 76 F. (2d) 812 (1935), there was a District of Columbia separate maintenance order followed by a divorce obtained by the husband in Virginia. It was held that the husband’s obligations under the separate maintenance decree should be terminated as of the date when he applied for vacation of that decree in the District of Columbia courts. In Cardinale v. Cardinale, 8 Cal. (2d) 762, 68 P. (2d) 351 (1937), where there was a California separate maintenance decree followed by a Nevada divorce, it was held proper to terminate the maintenance as of the date of the divorce. See, also, State v. Lynch, 42 Del. 95, 28 Atl. (2d) 163 (1942); Commonwealth v. Parker, 59 Pa. Super. Ct. 74 (1915); Commonwealth v. Kurnicker, 96 Pa. Super. Ct. 553 (1929); Esenwein v. Commonwealth, supra; Herrick v. Herrick, 55 Nevada 59, 25 P. (2d) 378 (1933), and numerous decisions cited in both the prevailing and dissenting opinions in Simonton v. Simonton, 40 Idaho 751, 236 P. 863, 42 A. L. R. 1363 (1925).
The same principle was applied, although under different circumstances, in the recent case of Calhounv. Calhoun, 70 Cal. App. (2d) 233, 160 P. (2d) 923 (1945). The case arose out of a Nevada divorce obtained by a former resident of California from his wife. The wife afterwards sued him in California attacking the validity of the Nevada divorce on various grounds and seeking, among other things, an award of support money. It was argued that, as the Nevada court only granted a divorce and did not attempt to pass on the question of the support of the wife, the California courts could award the wife support money without violating the full faith and credit clause of the Constitution. The court said: “The answer to this argument lies in the fact that the power to award support grows out of the marital relation“, citing Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am. St. Rep. 70 (1894), where it was said: “After the judgment granting the divorce the plaintiff was no longer the wife of the defendant; and he owed her no longer any marital duty.” It is worthy of note that the Howell case was cited and relied upon by this court in McFarlane v. McFarlane, supra.
There are decisions to the contrary, most of which, however, do not discuss the effect of the applicable statute or the nature of alimony and its dependence upon the marriage relation. See Williams v. Williams, 96 Ky. 397, 29 S. W. 132 (1895); Robinson v. Robinson, 250 Ky. 488, 63 S. W. (2d) 605 (1933); Schimek v. Schimek, 109 N. J. Eq. 395, 157 Atl. 649 (1931). The New Jersey court, while holding that a subsequent divorce does not terminate a previous decree for separate maintenance, holds somewhat inconsistently that a decree for maintenance cannot be granted after divorce, inasmuch as such a decree is dependent upon the existence of the marital relation between the parties. Magowan v. Magowan, 57 N. J. Eq. 195, 198, 39 Atl. 364 (1898). And
The courts which hold that maintenance does not survive divorce are not in entire agreement on when the obligation under a maintenance decree terminates, some holding that it terminates as of the date of the foreign divorce decree (see cases cited in 1 A. L. R. (2d) 1435), others that termination takes effect as of the date a proceeding to vacate the maintenance decree is commenced. See Bloedorn v. Bloedorn, supra. In our opinion the former is the more logical view.
It is suggested that Oregon courts have inherent jurisdiction to award alimony after a divorce obtained in a sister state on constructive service. That is a question that has never been directly passed upon in this state and which, like most of the other really important questions in this case, has not been argued. The existence of such a jurisdiction may be difficult to reconcile with the reasoning employed and the principles approved in the Huffman and McFarlane cases previously cited. But the question is not before us and we express no opinion upon it. The case comes to us as an appeal from the Circuit Court’s decree vacating the decree of separate maintenance as of the date of the Nevada divorce decree in response to a
As previously stated, the determination of Oregon’s policy touching divorce and alimony is the province of the legislature, not of the courts. The existing separate maintenance statute was passed in 1941, and it is not likely that the problem presented by the facts of this case was then in the minds of the legislature or of those who drafted the measure. It could not then have been a serious problem, for that was before the Williams cases had overruled Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 26 S. Ct. 525, 5 Ann. Cas. 1 (1906). This state would then have been free to withhold recognition from a decree of divorce of a sister state obtained under the circumstances of this case. It could have held that, so far as Oregon is concerned, the parties to the suit were still husband and wife with every legal incidence pertaining to that relation. Today, however, under the new interpretation of
“* * * While appreciating the incongruity of this situation in fact, we must recognize its validity in law, under the faith and credit clause of the Constitution (
Const. art. 4, § 1 ), and the statutory provisions and legal doctrines controlling the matter. The difficult remedy for this unwholesome condition may lie in a system of uniform divorce laws more liberal than the present statute of the District of Columbia.”
It may be that the legislature of Oregon, if it is so minded, could adopt amendments, free from constitutional objections, to our separate maintenance statute, which would make it more difficult for husbands to free themselves of their obligations to support their wives, domiciled in this state, by going to another state and securing what have been referred to as “bargain counter” divorces. [REDACTED]
Third. There are other objections to the decree of lesser importance which will be briefly considered. The Nevada court was not advised, either by the pleadings or otherwise, of the existence of the prior Oregon decree of separate maintenance. It is insisted that this was a fraud on the court, affecting its judgment to such extent that recognition thereof may and ought to be denied by the courts of Oregon. Fraud in the procurement of the judgment of a foreign state is recognized as ground for collateral attack upon the judgment. 3 Nelson, Divorce and Annulment, (2d ed.) §§ 33.30, 33.73; 27 C. J. S., Divorce, § 336; 50 C. J. S., Judgments, § 895; Bartholomae Oil Corp. v. Booth, 146 Or. 154, 163, 28 P. (2d) 1083; Kissenbeck v. Kissenbeck, 145 Or. 82, 85, 26 P. (2d) 58; Stimson v. Stimson, 140 Or. 507, 515, 13 P. (2d) 368; Murray v. Murray, 6 Or. 17, 24. The fraud, however, must have been
[REDACTED] We are told that the trial court erred in permitting plaintiff‘s motion to vacate the decree to be supported by affidavits, and in denying defendant the right to take the depositions of witnesses. The practice of supporting and of opposing motions of this sort by affidavits is based upon statutory authority.
[REDACTED] It is argued that the evidence in the Nevada case (a transcript whereof is before us as an exhibit) did not establish that the living apart of the parties for three consecutive years had been “without cohabitation“, as required by the statute. The judgment of a
[REDACTED] In accordance with these views the decree of the Circuit Court is affirmed. The proceedings being in equity and the circumstances what they are, it is ordered that the appellant shall receive her costs and disbursements.
HAY, J., dissenting:
Plaintiff and defendant intermarried in Ohio in 1935. Both parties, at that time, were students at the University of Michigan, where plaintiff was taking graduate work in architecture. Plaintiff is a native Oregonian, and, until 1946, had always claimed Oregon as his domicil. Leaving Michigan, they spent some time in Arizona and in southern California, and finally came to Oregon, where plaintiff abandoned architecture in favor of medicine as a career. He studied medicine at the medical school of the University of Oregon, and was graduated therefrom with the degree of M.D. in December, 1943.
On May 17, 1943, Dr. Rodda filed suit for divorce against Mrs. Rodda, in Multnomah County, Oregon. His amended complaint charged her with numerous specifications of cruel and inhuman treatment. Mrs. Rodda answered the complaint by general denial, and, as a counterclaim, prayed for a decree of separation and maintenance, under the provisions of chapter 408, Or. L., 1941, alleging as grounds therefor that plaintiff had himself been guilty of specified cruel and inhuman treatment toward her, had failed to provide her with adequate food and clothing, and had been unfaithful to her.
On March 17, 1945, after a hearing in which both parties participated, the court made general findings
On May 16, 1946, Dr. Rodda brought suit for divorce in the District Court of the State of Nevada for the Second Judicial District, Washoe County, upon the ground that, for the three consecutive years immediately preceding, he and his wife had lived separate and apart without cohabitation. (
On December 13, 1946, Dr. Rodda filed in the Circuit Court for Multnomah County, Oregon, his motion to vacate, as of the date of the Nevada decree, that part of the Oregon decree which required him to pay Mrs. Rodda $100 a month for her maintenance. In response to an order to show cause why the motion should not be allowed, Mrs. Rodda, inter alia, pleaded the decree of separation and maintenance. After a hearing, the court, on July 10, 1947, entered its decree vacating the decree of separate maintenance as of June 19, 1946, the date of the Nevada decree. From this order Mrs. Rodda has appealed to this court.
Consideration of what recognition must be given to the Nevada decree by our courts involves a federal question under the full faith and credit clause of the
In Haddock v. Haddock, (1906) 201 U. S. 562, 50 L. ed. 867, 26 S. Ct. 525, 5 Ann. Cas. 1, the facts were as follows: A husband and wife had been domiciled in the State of New York. The husband deserted the wife and, after a lapse of years, acquired, in good faith, a domicil in Connecticut. The wife remained in New York. In Connecticut, the husband procured a decree of divorce, based upon constructive service of process only. The wife afterward brought suit in New York for separation from bed and board and for alimony, and obtained personal service upon the husband in that state. He pleaded the Connecticut decree. It was held that that decree, not being based upon personal service, was not entitled to obligatory enforcement in the State of New York under the full faith and credit clause of the federal constitution. The court was of the opinion that a suit for divorce, brought in a state other than that of the matrimonial domicil against the wife who remained in the matrimonial domicil, was not a proceeding in rem justifying the court to enter a decree affecting the res, or marriage relation, entitled to be enforced outside of the territorial jurisdiction of the court. The doctrine thus enunciated was followed by the courts for more than thirty-five years. Toncray v. Toncray, (1910) 123 Tenn. 476, 131 S. W. 977, 34 L. R. A. N. S., 1106; Hicks v. Hicks, (1912) 69 Wash. 627, 125 P. 945; Bennett v. Tomlinson, (1928) 206 Iowa 1075, 221 N. W. 837; Lednum v. Lednum, (1929) 85 Colo. 364, 276 P. 674; Larrick v. Larrick, (1930) 39 Ohio App. 363, 177 N. E. 642; Sheridan v. Sheridan, (1942) 213 Minn. 24, 4 N. W. 2d 785. The Haddock case was specifically overruled in the first Williams case, supra (317 U. S. 287). That case, however, did not involve the question of obligatory recognition of a foreign-state decree of divorce based upon substituted service, when such decree is sought to be relied upon as absolving the husband from his duty to pay alimony adjudged against him in a prior suit for separate maintenance in the wife‘s home state, based upon personal service. It would seem, therefore, that the court‘s statement in Williams v. North Carolina, supra (317 U. S. 287) that ”Haddock v. Haddock is overruled“, should be regarded as being limited within the scope of that decision, and not as implying a sweeping overruling of the whole of Haddock v. Haddock.
I agree with the majority opinion that Dr. Rodda established a bona fide domicil in Nevada, and that the Nevada court had jurisdiction of his suit to dissolve the marriage.
The most recent decision of the federal Supreme Court upon the impact of the full faith and credit clause on the situation in the instant case is Estin v. Estin, (1948) 334 U. S. 541. The controversy which the opinion in that case terminated arose in the State of New York. The plaintiff wife, in 1943, was awarded a judgment of permanent separation from bed and board, with alimony. The husband had entered a general appearance in the cause. Some two years later, on constructive service upon the wife, the husband obtained a decree of divorce in Nevada. He thereupon ceased paying alimony under the New York judgment, and in due course the wife brought an action for the amount thereof accrued and unpaid. The husband appeared in the action, and, based upon the Nevada
“We have then this situation: The full faith and credit clause commands us to accord recognition to so much of the Nevada decree as pronounced the dissolution of the marriage; and the only remaining question is whether the Nevada decree must also be taken to have cancelled the alimony provision made for the wife through the prior judgment in this New York separation action.
“A divorce decree (whether foreign or domestic) granted by a court having jurisdiction of the persons of both parties may very well be held to override any incongruous alimony provision of an earlier domestic judgment of separation. See Scheinwald v. Scheinwald, 231 App. Div. 757, 246 N. Y. S. 33; Richards v. Richards, 87 Misc. 134, 149 N. Y. S. 1028; affirmed 167 App. Div. 922, 152 N. Y. S. 1140; Holmes v. Holmes, 81 U. S. App. D. C. 132, 155 F. 2d 737, 166 A. L. R. 1000. But the res judicata principle of the cases just cited—that as between two conflicting adjudications the last must control—has no application where, as in the present case, the court which granted the last judgment was without jurisdiction of the person of the defendant. Cf. Miller v. Miller, 200 Iowa 1193, 206 N. W. 262; Wagster v. Wagster, 193 Ark. 902, 103 S. W. 2d 638; 2 Freeman on Judgments, 5th ed., § 629. * * *”
Estin v. Estin, (1947) 296 N. Y. 308, 73 N. E. 2d 113, 114, affirmed Estin v. Estin, (1948) supra (334 U. S. 541, 92 L. ed. 1078, 1082, 1083, 68 S. Ct. 1213, 1 A. L. R. 1412).
“* * * In this case New York evinced a concern with this broken marriage when both parties were domiciled in New York and before Nevada had any concern with it. New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood and support is plainly a matter in which her community had a legitimate interest. The New York court, having jurisdiction over both parties, undertook to protect her by granting her a judgment of permanent alimony. Nevada, however, apparently follows the rule that dissolution of the marriage puts an end to a support order. See Herrick v. Herrick, 55 Nev. 59, 68, 25 P. 2d 378, 380. But the question is whether Nevada could under any circumstances adjudicate rights of respondent under the New York judgment when she was not personally served or did not appear in the proceeding.
”Bassett v. Bassett, 141 F. 2d 954, held that Nevada could not. We agree with that view. ‘* * * The Nevada decree that is said to wipe out respondent‘s claim for alimony under the New York judgment is nothing less than an attempt by Nevada to restrain respondent from asserting her
claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done. Since Nevada had no power to adjudicate respondent‘s rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada‘s judgment. A judgment of a court having no jurisdiction to render it is not entitled to the full faith and credit which the Constitution and statute of the United States demand. Hansberry v. Lee, 311 U. S. 32, 40, 41 (85 L. ed. 22, 26, 27, 61 S. Ct. 115, 132 A. L. R. 741); Williams v. North Carolina, 325 U. S. 226, 229, (89 L. ed. 1577, 1581, 65 S. Ct. 1092, 157 A. L. R. 1366), and cases cited. “The result in this situation is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.‘” (Emphasis supplied.) Estin v. Estin, supra (334 U. S. 541, 92 L. ed. 1078, 1082, 1083).
In the Bassett case, above mentioned, the facts were: William and Margaret Bassett, husband and wife, were domiciled in the State of New York. William left New York and established his domicil in Nevada. Thereafter, Margaret sued in New York for separate maintenance, and secured a judgment therefor, payable in monthly installments. Subsequently, she obtained two several judgments in the New York court for unpaid installments. William thereafter obtained a decree of absolute divorce in Nevada, upon substituted service on Margaret, who made no appearance in the suit. Margaret then brought an action upon her New York judgments in the District Court of the United States for the District of Nevada. William pleaded the Nevada divorce decree as a bar. The Dis-
“As here presented we are asked to accept the decree of a Nevada State Court which, in effect, attempts to set aside decrees or judgments of a court of New York. This is the point in this appeal, and Williams v. North Carolina, supra, has absolutely nothing to do with it.”
In the case at bar, the award of alimony to Mrs. Rodda was made under authority of the state statute providing that, upon certain stated grounds, either
The inquiry, in my opinion, involves the question of whether or not, under the law of Oregon, the Oregon decree of separate maintenance was terminated ipso facto by the Nevada decree of absolute divorce. There is nothing in the separate maintenance statute itself (ch. 408, Laws, 1941) to indicate that the legislature intended or contemplated that the latter decree should have such an effect. Dr. Rodda has made no showing of any change in conditions affecting his liability for alimony, occurring since the entry of the separate maintenance decree, other than the entry of the Nevada decree.
“Alimony is the allowance which the husband is compelled to pay for his wife‘s maintenance while she is living apart from him, or after she has been divorced. * * * It is founded upon the marital obligation to support and maintain, and is awarded by the court in
enforcement of this obligation and duty.” Keezer, Marriage and Divorce, 2 ed., section 660; Warrington v. Warrington, 160 Or. 77, 80, 83 P. 2d 479; 27 C. J. S., Divorce, section 202c. Under our law, a divorce may be awarded either with or without alimony, and, conversely, alimony, or separate maintenance, may be awarded without divorce. There is, therefore, no “necessary connection between divorce and alimony“. Toncray v. Toncray, supra (1910—123 Tenn. 476, 131 S. W. 977, 34 L. R. A. (N. S.) 1106, 1109). The right to alimony, being founded upon the duty of the husband to support the wife, and being unaffected by the foreign ex parte decree of divorce, may, in my opinion, survive that decree.
There is respectable authority, apart from Estin v. Estin, supra, for the proposition that a decree of absolute divorce is not a mandatory ground for termination of a prior award of separate maintenance. See Anno., 166 A. L. R. 1004, 1018, and cases cited.
In Esenwein v. Commonwealth, (1945) 325 U. S. 279, 89 L. ed. 1608, 65 S. Ct. 1118, 157 A. L. R. 1396, Mr. Justice Douglas, in a specially concurring opinion, foreshadowed the later decision in Estin v. Estin, supra, in the following language:
“* * * it is not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree. It is one thing if the spouse from whom the decree of divorce is obtained appears or is personally served. See Yarborough v. Yarborough, 290 U. S. 202, 90 A. L. R. 924; Davis v. Davis, 305 U. S. 32, 118 A. L. R. 1518. But I am not convinced that in absence of an appearance or personal service the decree need be given full faith and credit when it comes to maintenance or support of
the other spouse or the children. See Pennoyer v. Neff, 95 U. S. 714. The problem under the full faith and credit clause is to accommodate as fully as possible the conflicting interests of the two States. See Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 447 (dissenting opinion). The question of marital capacity will often raise an irreconcilable conflict between the policies of the two States. See Williams v. North Carolina, supra. One must give way in the larger interest of the federal union. But the same conflict is not necessarily present when it comes to maintenance or support. The State where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized. In that view Pennsylvania in this case might refuse to alter its former order of support or might enlarge it, even though Nevada in which the other spouse was domiciled and obtained his divorce made a different provision for support or none at all. See Radin, The Authenticated Full Faith and Credit Clause, 39 Ill. L. Rev. 1, 28.”
The separate-maintenance decree herein was granted at a time when the parties were husband and wife. If the rule of Haddock v. Haddock, supra, were still in force, Oregon would no doubt decline to recognize or to give effect to the Nevada divorce decree, to any extent whatever. By the Supreme Court‘s present interpretation of the
“It is not essential to the allowance of alimony that the marriage relation should subsist up to the time it is allowed. On appeal, alimony may be decreed by the district court, notwithstanding the subsisting divorce pronounced by the court of common pleas. It is true the statute speaks of the allowance as being made to the wife. But the term ‘wife’ may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony.”
Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, 417.
In Bragg v. Bragg, (1925) Prob. (Eng.) 20—Div. Ct., a wife had obtained an order, under a summary jurisdiction act, (Summary Jurisdiction — Married Women — Act, 1895) whereby her husband was declared to have deserted her and was ordered to pay her a certain sum weekly for the maintenance of herself and their children. Three years later the wife obtained a decree nisi for a dissolution of the marriage, which decree made no provision for maintenance of herself or children. The decree was afterward made absolute. It was held that the divorce decree and the termination
“* * * [The order may contain] (3) A provision that the husband shall pay to the wife personally * * * such weekly sum * * * as the court, having regard to the means of the husband and wife, * * * considers reasonable * * *”
The court, apparently, was not troubled by any legalistic notion that the divorce decree divested the support order of the basis, in the marital status of the parties, upon which it was founded.
Similarly, the New York statute upon which the separate-maintenance decree in Estin v. Estin, supra, was granted, provides as follows:
“Where an action for separation from bed and board is brought by the wife, the court, in the final judgment of separation, may give such directions as the nature and circumstances of the case require. In particular, it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties. And the court, in such an action, may render a judgment compelling the defendant to make the provision specified in this section where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of separation.”
Gilbert-Bliss: Civil Practice of New York, Annotated, Book 6A, section 1164.
Notwithstanding the designation of the woman as “the
I submit that justice and equity require that the designation of the parties as “husband” and “wife“, or as “married persons“, in our statute, should be regarded, in circumstances such as those in the instant case, as mere descriptio personarum. It is to be remembered that statutes providing for separate maintenance are remedial in character and should be liberally construed. 42 C. J. S., Husband and Wife, section 614. This court should hold that the prior decree of separate maintenance was not terminated by the Nevada ex parte decree of divorce. Estin v. Estin, supra (334 U. S. 541); Cox v. Cox, supra; Schimek v. Schimek, (1931) 109 N. J. Eq. 395, 157 A. 649; Robinson v. Robinson, (1933) 250 Ky. 488, 63 S. W. 2d 605; Wagster v. Wagster, (1937) 193 Ark. 902, 906, 103 S. W. 2d 638; Simonton v. Simonton, (1925) 40 Ida. 751, 236 P. 863, 42 A. L. R. 1363, and Anno., 1375.
We have held that “the public policy of this state has no sympathy for those who seek to shirk the duty imposed by decrees directing the payment of support money“. Cousineau v. Cousineau, 155 Or. 184, 201, 63 P. 2d 897, 109 A. L. R. 643. To give to the Nevada decree the effect which Dr. Rodda seeks here,
“* * * would be to offer a premium to all discontented husbands by way of deserting their wives and obtaining a * * * divorce in a foreign jurisdiction, and thus [relieving] [themselves] of all obligations to pay any alimony, allowance, or support. It would thus put it in the power of the husband to do, through the instrumentality of a foreign jurisdiction, what he could not do in the courts where he and his wife both resided. We are not disposed to sanction so great an imposition upon
our own citizens, and the domestic policy of our own state. * * *” Cook v. Cook, (1882) 56 Wis. 195, 14 N. W. 33, 40, 43 Am. Rep. 706.
I note the suggestion by Mr. Justice Brand that the Oregon courts have inherent equitable jurisdiction to award alimony upon an independent suit therefor instituted subsequent to an ex parte divorce obtained in a sister state. I am in sympathy with that view. I think, however, that the point does not arise upon the record in this case. The only issue presented here, as I see it, is whether or not the ex parte divorce decree of a sister state terminated ipso facto the husband‘s liability under the previous decree of separate maintenance. Conceding Mr. Justice Brand‘s contention, however, it should be apparent that if, after such an ex parte divorce, the courts may still award alimony, it must be upon the theory that the husband‘s duty to support his former wife survives the divorce. When that duty of support has been merged into a decree of separate maintenance, to say, in effect, that, because the full faith and credit clause compels us to recognize the bare divorce, the husband‘s duty of support may be continued only by transmuting the separate-maintenance decree into one for alimony, is, it seems to me, an inequitable insistence upon form rather than substance.
As the majority opinion states, it is not likely that the problem presented by the facts in this case was in the minds of our legislature in 1941, when our separate-maintenance statute was adopted, as the rule of Haddock v. Haddock was then still being followed, and the courts of this state no doubt would have refused to recognize such a decree as the present Nevada one in any respect whatever. It would seem that the legis-
The financial burden imposed upon Dr. Rodda by the separate-maintenance decree was not heavy. Mrs. Rodda, broken in health, and no doubt seriously in need of the small contribution toward her support which the decree awarded, may very well, as a result of the affirmance of the lower court‘s order, become impoverished and an object of public charity. That one of its citizens may be placed in such a situation by the ex parte decree of a sister state is a matter of vital concern to the State of Oregon, and that concern should be a sufficient reason in law to justify its courts in maintaining the integrity of the prior Oregon decree. Estin v. Estin, supra (334 U. S. 541). The legislature, when it convenes, may perhaps, by an amendment of the separate maintenance act, give verbal assurance, beyond the possibility of judicial doubt, that, under circumstances such as these, a decree of separate maintenance will survive a subsequent ex parte decree of divorce. But, in the meantime, the Oregon court will have lost jurisdiction over Dr. Rodda, and the legislative action, if any should eventuate, will come too late to be of any benefit to Mrs. Rodda.
The decision of the majority to vacate the separate-maintenance decree, upon the ground that the parties are no longer husband and wife, is, in my opinion, con-
Dr. Rodda is appealing to a court of equity to relieve him from the burden which was lawfully imposed upon him by that court. His action, in resorting to the Nevada court to procure a divorce which had been denied him in Oregon, in so far as such action was evidently motivated by a desire to evade payment of alimony which had been justly awarded by an Oregon court to the wife whom he had wronged, demonstrates that, for his own part, he is unwilling to do equity. The allowance of his motion to vacate the decree of separate maintenance will have the effect of depriving Mrs. Rodda of all remedies which are now available to her for the enforcement of her just rights in the premises. A court of equity ought not to lend its aid to the accomplishment of an inequitable scheme. The fact that the mere letter of the statute may be insufficient to chart a course of procedure adequate to meet the exigencies of a novel situation, should not prevent a court of equity from adopting whatever mode of proceeding may be necessary to carry out the spirit of the law.
“Courts which have a true conception of the philosophy of equity constantly reiterate the fact
that equity meets all conditions; that human ingenuity and human affairs can not create a condition which the long arm of the court of equity cannot reach if injustice or wrong would otherwise result. See Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909, 936; Rice v. Van Vranken, 132 Misc. 82, 229 N. Y. S. 32.” Teachers’ Retirement Fund Ass‘n v. Pirie, 150 Or. 435, 445, 46 P. 2d 105. “* * * the conception of law as a means toward social ends, the doctrine that law exists to secure interests, social, public and private, requires the jurist to keep in touch with life. Wholly abstract considerations do not suffice to justify legal rules under such a theory. The function of legal history comes to be one of illustrating how rules and principles have met concrete situations in the past and of enabling us to judge how we may deal with such situations in the present, rather than one of furnishing self-sufficient premises from which rules are to be obtained by rigid deduction.” Pound: The Scope and Purpose of Sociological Jurisprudence, p. 146.
The foregoing considerations, which appear to me to be compelling, have moved me thus to register my respectful dissent from the majority opinion herein.
KELLY, J., concurs in the foregoing dissenting opinion.
BRAND, J., dissenting.
I agree with the majority in the following respects: (1) Dr. Rodda established a bona fide residence in Nevada; (2) The Nevada court had jurisdiction to divorce the parties; (3) The Full Faith and Credit Clause requires the Oregon court to recognize that the plaintiff and defendant are no longer married persons; (4) The effect of the Nevada divorce on the Oregon separate maintenance decree presents a question of Oregon law unaffected by the Full Faith and
I do not agree that an Oregon court of equity is powerless to do justice in a case such as this which is not covered by any Oregon statute. I do not agree that we are limited to determining “whether under Oregon law the former husband is still obligated to support his former wife under that decree“. (Italics mine). I suggest that there is another legal basis aside from the statute under which the lower court in this case may determine whether or not a decree should be rendered requiring Dr. Rodda to continue to support his former wife. That basis, as I shall attempt to show, is the inherent power of equity. I have no quarrel with the actual decision in Huffman v. Huffman, 47 Or. 610, 86 P. 593 (1906), cited by the majority. It relates to the power of an Oregon court to make awards incident to a divorce decree under then existing statutes. The case was decided in 1906. In that case it was said, “The great weight of judicial utterances, however, is to the effect that all authority to award alimony on decreeing a dissolution of the marriage must be found in the * * * statute expressly conferring the right“. The court cited 2 Bishop on Marriage, Divorce and Separation, § 1039. The work was published in 1891. It also cited Stewart, Marriage and Divorce, § 364, which was published in 1887. I shall presently show that the great
If the Oregon court has the power to require the husband to continue the payment of alimony after he, as plaintiff, received a foreign decree of divorce, then it must be conceded that there would be persuasive reasons for considering the question on its merits in this case. The Oregon court has found the husband to be at fault. The decree in Nevada was based on a law in which fault was not at issue. The Nevada court never acquired personal jurisdiction of the wife. The wife never had a day in court as to her right to alimony, and, not being a resident of Nevada, could not have received a divorce there if she had appeared in the suit.
There is good authority for the proposition that where a wife in the state of her residence secures a divorce from her husband on substituted service, and therefore cannot secure a personal decree of support from him, she may later, by an independent suit, secure such an order in the state of her residence if she can get personal service upon him. 17 Am. Jur., Divorce and Separation, § 627, p. 482, § 630, p. 483; Hutton v. Dodge, 58 Utah 228, 198 P. 165 (1921); Ware v. Ware, 144 Kan. 121, 58 P.(2d) 49 (1936); Stephenson v. Stephenson, 54 Ohio App. 239, 6 N. E. (2d) 1005 (1936); Wick v. Wick, 58 Ohio App. 72, 15 N. E. (2d) 780 (1938); Adams v. Abbott, 21 Wash. 29, 56 P. 931 (1899); 2 Nelson on Divorce, § 14.21, p. 26. The principle on which the decisions are based is well set forth in the analogous case of Wagster v. Wagster, 193 Ark. 902, 103 S. W. (2d) 638 (1937). It is also held that:
“Where the right subsequently to apply for alimony is preserved by reservation in the decree itself, an application for alimony may be made after the rendition of the judgment of divorce.” 17 Am. Jur., Divorce and Separation, § 630.
In the case of McFarlane v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139 (1903), the plaintiff brought suit in Oregon for divorce upon substituted service. She was awarded a decree. Several years later she filed a petition in the original divorce suit, seeking alimony. The defendant appeared specially, on the ground that the court was without jurisdiction. The court by Chief Justice Moore said:
“* * * The plaintiff was not obliged to take a decree in said suit, but, having done so, she thereby waived her right to alimony, costs, and attorney‘s fees; and, as our statute contains no provision allowing the court jurisdiction to pass upon these questions, when the defendant is found within the reach of its process, and the right to assume such jurisdiction never having existed at common law, the court erred in awarding plaintiff any sum whatever on account of alimony, attorney‘s fees, and costs in the original suit.”
It is true that the plaintiff had no obligation to sue her husband for divorce, but she had a statutory right to do so and to secure it upon substituted service. It is a strange theory which holds that the plaintiff
“Where a decree for alimony is an award in personam and the husband is not within its jurisdiction, a court is powerless to award alimony. But if the wife later resorts to a court having personal jurisdiction over her erstwhile spouse, the public interest in requiring him to contribute to her support is often ignored, and it is held that a divorce without alimony is conclusive against a right to further support, because alimony cannot be granted after the marriage is terminated. This argument seems to overlook the fact that alimony after an absolute divorce is essentially a substitute for the terminated marital duty of support, rather than an embodiment of that duty, as it was when a divorce did not end the marriage. Subsequent suits have also been denied on the ground that the prior decree was ‘res judicata’ on the issue of alimony, or constituted a ‘waiver’ of the wife‘s right to support. A number of courts, however, have recognized that there is no juristic necessity for suing for alimony and divorce in one suit, that an issue cannot be res judicata where the proceeding is ex parte and the solution of the problem is beyond the jurisdiction of the court, and that piecemeal litigation is justified by necessity in this situation.
“Where it is the husband who obtains an ex parte divorce in another state, a few courts cling to the notion that subsequent decrees for alimony are impossible because his marital duties have ended; and such a divorce has even been held to terminate a prior order for separate support. But alimony is granted in a majority of the states, because there is no possibility of ‘waiver’ by the wife and the husband‘s conduct often approximates a fraudulent evasion of his duties to his family. * * *”
The McFarlane case is cited in a note (83 A. L. R. 1248), which deals with a wholly different problem. At the opening of the annotation it is said:
“The present annotation presupposes that the divorced wife seeks the alimony from the same court which has previously granted her a divorce. It assumes, generally, that the court would originally have had jurisdiction to award alimony.”
It is also said that under statutes:
“It has been generally, though not invariably, held that statutes permitting modifications or changes as to alimony do not apply where no alimony has been granted in the decree.” 83 A. L. R. 1250.
Many cases are cited. With three exceptions, one of them being, the McFarlane case, the decisions cited in the note involved divorces obtained on personal service of the defendant. These cases are authority merely for the proposition that, when a court which has jurisdiction to award both divorce and alimony, makes no provision for alimony, it has no power under statutes like our own, to provide later for alimony upon motion in the original suit. This is the law of Oregon. Saurman v. Saurman, 131 Or. 117, 282 P. 111 (1929). The only cases cited in the note which support the McFarlane case are Howell v. Howell, 104 Cal. 45, 37 P. 770 (1894) and Kelley v. Kelley, 317 Ill. 104, 147 N. E. 659 (1925). Those cases apply the same rule where the plaintiff sues on substituted service, as is applied when the plaintiff secures a divorce on personal service. In all three cases the attempt was made by motion to open up the original final decree. No effort was made to bring an independent suit. If the McFarlane case is law, it must
If the McFarlane case is still deemed to be the law, it is distinguishable from the case at bar. The plaintiff misconceived her remedy by seeking to open a final decree on motion instead of bringing an independent suit. Upon that point the Oregon court might have followed, but did not follow, the procedure followed in Baird v. Baird, 311 Mass. 329, 41 N. E. (2d) 5 (1942). In that state the court has statutory power to grant alimony after a divorce. The plaintiff filed a motion for modification in the original divorce suit but the court treated it “in accordance with its essential substance” as a separate suit for alimony. The McFarlane case is to be distinguished also from the case at bar because in that case the wife brought the suit in Oregon. In the case at bar the husband secured a foreign divorce in Nevada. The wife could not have waived her right to alimony when the husband brought the suit, nor could he waive it for her.
The cases from other states which are cited supra are persuasive but are not directly in point on the question at issue. Where an Oregon court grants a divorce to the wife on account of the fault of her husband, the court normally has power to award alimony as an incident thereto. The only reason that it cannot give full relief in a case based on substituted service is that it has jurisdiction over the status but not personal jurisdiction over the husband. It should logically follow that upon getting personal service on the husband at a later time, the court may exercise the latent power which was vested in Oregon courts to grant ali-
While the authorities are not unanimous, the better reasoned decisions hold that after the husband has obtained a foreign divorce upon constructive service, the wife in the state of her residence may by an independent suit, secure an order for alimony if she obtains personal service upon her former husband.
“* * * Thus, if the wife secures a divorce from her husband, who is a nonresident, in a court having jurisdiction over him only by substituted service, the divorce decree is not a bar to the wife‘s subsequent application for alimony because jurisdiction to pass on the question of alimony was wanting in the divorce suit, even though there was sufficient to sustain a judgment affecting merely the marital status. This rule applies not only where the divorce decree was entered in the same state or country in which the application for alimony is made, but also where the wife procured a divorce in another state or country. Similarly, a divorce granted ex parte to the husband in another state the courts of which acquired no jurisdiction of the wife other than by substituted service does not bar the wife‘s right subsequently to apply for alimony, even though the decree is valid so far as the marital status is concerned. Under such circumstances a statute forbidding the allowance of alimony to a wife against whom her husband has secured a divorce has no application.” 17 Am. Jur., Divorce and Separation, § 627.
In Searles v. Searles, 140 Minn. 385, 168 N. W. 133 (1918), the court said:
“In the divorce action in Washington jurisdiction was acquired of the defendant, this plaintiff, by substituted personal service in Minnesota as au-
thorized by the Washington statute which is similar to ours. The action was in rem. The res was the marriage status or relation existing between the parties. That was within the jurisdiction of the Washington court and the effect of its judgment was to destroy it. There was no determination of the question of alimony. The judgment, since it was in rem and operative only on the res, the marriage status, is not res judicata on an application for alimony. The wife, in such a situation as is before us, may maintain an independent action for alimony in the state of her residence and matrimonial domicil. This is the substantial effect of Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017 (1894), and the doctrine finds general though not universal support. See Toncray v. Toncray, 123 Tenn. 476, 131 S. W. 977 (1910), 34 L. R. A. (N. S.) 1106, Ann. Cas. 1912C, 284; Cox v. Cox, 19 Oh. St. 502, 2 Am. Rep. 415 (1869); Turner v. Turner, 44 Ala. 437 (1870); Cook v. Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 Am. Rep. 706 (1882); note 34 L. R. A. (N. S.) 1106; note Ann. Cas. 1912C, 284, 289; note 77 Am. St. 228, 240; 1 Enc. Pl. & Pr. 415; 2 Nelson, Div. & Sep. § 936; 2 Bishop, Marr. & Div. § 844, et seq.; 1 R. C. L. 937.”
See also Toncray v. Toncray, 123 Tenn. 476, 131 S. W. 977; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415; Slapp v. Slapp, 73 Ohio App. 444, 57 N. E. (2d) 81, 143 Ohio St. 105, 54 N. E. (2d) 153 (1944); Sheridan v. Sheridan, 213 Minn. 24, 4 N. W. (2d) 785 (1942), (and see comment on this case in 157 A. L. R. 1402); Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779 (1896); Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942 (1894); Davis v. Davis, 70 Colo. 37, 197 P. 241 (1921); Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017; 27 C. J. S., Divorce, § 231 (b) p. 947; 3 Nelson on Divorce, § 33.40, p. 510-11; 42 A. L. R., 1385 Note; Note to In re Popejoy, 77 Am. St. Rep. 241.
Although there is a conflict of authority, it has also been held that a prior decree for separate mainte-
The cases which hold that the decree of separate maintenance may survive a foreign ex parte divorce must, it seems, be based on the power of a court of equity, though the courts do not expressly base the decisions on that ground. The only other basis which
Speaking of the effect of a foreign divorce based on constructive service upon the power of a court of the wife‘s domicil to award alimony after obtaining personal jurisdiction of the former husband, the A. L. R. annotator makes the following pertinent comment:
“* * * to entitle the former wife to alimony, it must be held or assumed that the right to alimony is not exclusively an incident of divorce, but may be allowed independently thereof. That question is, of course, broader than the subject of the present annotation. It may be noted, however, that in a majority of states alimony may now be awarded in an independent suit therefor. 1 R. C. L. 879.” 42 A. L. R. 1385.
He continues:
“Of course, in a jurisdiction where the former view still prevails, that alimony is merely incidental to a divorce, the previous decree of divorce, although rendered upon constructive service of process, is fatal to an independent suit for alimony, upon the present assumption that that decree dissolved the marriage relation.
“To entitle the former wife to alimony in an independent suit, it must not only appear that, according to the law of the state in which the question arises, alimony may be allowed independently of a suit for divorce, but that in some circumstances it may even survive the dissolution of the marriage relation.” 42 A. L. R. 1386.
Obviously, if in a given state, alimony could only be awarded as an incident to a divorce or separate maintenance decree rendered in that state, it would follow that a court could not award alimony where the
“Separate maintenance is the allowance granted to a wife for the support of herself and children while she is living separate and apart from her husband. The right to separate maintenance is grounded upon the fundamental legal duty of the husband to support his wife during the time that the marriage relation exists. Though a legal separation has been decreed, the marital relation still exists. It anticipates that a future reconciliation may be brought about. It is otherwise where a divorce has been granted. In such case the marital relation is dissolved and the husband, aside from the support commanded by the decree, is not compelled to care for his former wife.”
In Magowan v. Magowan, 57 N. J. Eq. 195, 39 A. 364 (1898), a bill was “filed by a wife against her husband for maintenance under the statute.” The husband had previously received a decree of divorce in Oklahoma. The court said:
“* * * I am constrained to the conclusion that the decree of the Oklahoma court must in this suit
be regarded as a valid judgment. This being so, there can be no decree for the allowance of a sum for maintenance, inasmuch as such a decree is dependent upon the existence of the marital relations between the parties. Freeman v. Freeman, 49 N. J. Eq. 102; Lynde v. Lynde, 54 N. J. Eq. 473. * * *”
See Patterson v. Patterson, 82 Cal. App. (2d) 838, 187 P. (2d) 113 (1947); 27 Am. Jur., Husband and Wife, § 429, p. 34.
The Oregon divorce statute provides that “Whenever a marriage shall be declared void or dissolved, the court shall have power further to decree” for the recovery of alimony from the party in fault.
It remains to be determined whether the Oregon court has inherent equitable power to award alimony to the wife, a resident of Oregon, irrespective of statute, after the parties have been divorced at the suit of the husband upon substituted service by a foreign decree. From a note in 141 A. L. R., p. 402, we quote:
“By the overwhelming weight of American authority of later years, and especially of recent times, the original inherent jurisdiction of equity to grant alimony independently of divorce is freely sustained, both in cases in which the question was expressly raised and in those in which jurisdiction was exercised under the tacit assumption that it existed.”
See also 141 A. L. R. 420; 27 Am. Jur., Husband and Wife, § 402, p. 9.
Decisions from 25 states support the text. Most of the authorities cited relate to the power of equity regardless of statute, to order the payment of alimony between married persons, but the decisions are not limited to that situation. We have already cited the cases which hold that a divorced wife may bring an independent suit for alimony on personal service in the state of her residence when the court which granted a foreign divorce on substituted service to her husband had no power to adjudicate the right of the wife. In the case of Bray v. Landergren, 161 Va. 699, 172 S. E. 252 (1934), the plaintiff in Virginia brought suit for divorce against her husband, a nonresident, upon substituted
“The jurisdiction of our courts of equity in divorce cases is statutory. McCotter v. Carle, 149 Va. 584, 140 S. E. 670 (1927); Chandler v. Chandler, 132 Va. 418, 112 S. E. 856 (1922); Blankenship v. Blankenship, 125 Va. 595, 100 S. E. 538 (1919), and in
Code, § 5111 , as amended by Acts 1927 (Ex. Sess.) c. 85, provisions are made for alimony, but they are not exclusive.“In this commonwealth, and indeed in most of the states, divorces at early dates were by act of the Legislature, but court of equity, at a time when they had no general jurisdiction to grant them, asserted and exercised jurisdiction to decree alimony.”
The court referred to the case of Purcell v. Purcell, 4 Hen. & M. (14 Va.) 507 (1809), in which the plaintiff wife brought an independent suit for alimony without seeking divorce. In the Purcell suit, the chancellor said:
“If the jurisdiction of this court were now to be settled upon English precedents, there might be some doubt about the question, from the cases, as brought into one view, by Mr. Fonblanque; but I shall leave this clashing of English Judges to be reconciled among themselves, and take up the question upon first principles.
“I hold, that in every well regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a Court of Equity; and as husband and wife are considered as one person in law, it is evident, that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this Court jurisdic-
tion; and therefore it must entertain the bill, if there be sufficient proof of the marriage.”
Commenting upon this decision, the court in Bray v. Landergren said: “It will be observed that jurisdiction was here taken because law afforded no other relief.” The court then stated that another appealing reason was set forth in 1 R. C. L., p. 876, and quoted with approval the following:
“Although the power to grant divorces had become identified with the legislative power as the result of long usage, the determination of the legal consequences flowing therefrom was so bound up with the property rights of the parties and so essentially judicial in its nature, that the courts were loath to allow the legislature to assume the same. Consequently, although courts of chancery would not assume jurisdiction over divorce in the absence of direct authorization, they nevertheless held that their general equity jurisdiction must be deemed to include the right to award alimony in a proper case, inasmuch as the ecclesiastical courts, to which such jurisdiction rightfully belonged at common law, had never constituted a part of our judicial system. Their conclusion was further strengthened by the fact that in England, during the commonwealth, the ecclesiastical courts were abolished, and in consequence thereof their entire jurisdiction in cases of alimony and of separate maintenance devolved, as a matter of course and necessity, upon the court of chancery as the only tribunal fitted and competent to decide thereon.”
The court also quoted with approval from Harris v. Harris, 31 Grat. (72 Va.) 13, 17 (1878), as follows: “But the power of courts of equity to decree alimony did not originate in any statute. It is a power inherent in them.” The court continued:
“It is said, however, that this power to award alimony by a court of equity, independent of stat-
ute, does not exist where the divorce is absolute, because in such a case there was no duty to support under the common law. 1 R. C. L., p. 877. “* * *
“The situation in this country has now definitely changed. Unnumbered cases arise in which absolute divorces are granted for supervenient causes. In such cases the obligations to support are as cogent as they are when there is separation only. If a statute authorized these absolute decrees but gave the wife no right to alimony or to support from her delinquent husband, we would have a right without remedy which would be as appealing as was the situation in Purcell v. Purcell, supra. The same reasons for the intervention of equity which prevailed in one case, obtains in the other.”
The court also quoted with approval from a note by Mr. Freeman to 60 Am. Dec. 667, as follows:
“And there are cases which hold that this principle of the incidental character of alimony extends to the divorce unknown to the ecclesiastical law—the divorce absolute, or a vinculo matrimonii, for causes other than marital incapacity; and therefore that, though not expressly authorized to grant alimony in such cases, the courts may nevertheless do so: Harris v. Harris, 31 Grat. [72 Va.] 13, 17; See Chaires v. Chaires, 10 Fla. 308, 312 (1863); Campbell v. Campbell, 37 Wis. 206, 220 (1875). But this doubt, of whatever weight, is removed generally by statutes which provide for alimony with all kinds of divorce.”
The pending case is one of first impression in Oregon. The modern majority rule concerning the inherent power of equity, if approved, will make it possible for the courts of this state to do justice to a class of its citizens who would otherwise be without remedy. Where the former wife whose husband has
Authorities from other states advise us that we should hold that Oregon courts have inherent equitable power to award alimony, subject only to the limitations imposed by our statutes. Where the legislature has made specific provision for the allowance of alimony in our statute on separate maintenance and in the statute on divorce and has specified the conditions upon which alimony may be granted, then it is clear that the jurisdiction of the Oregon court would be limited to the specific provision of the statute. That is to say, that where the legislature has covered the field, the power of equity would be limited by the statute and within that field the power of the court to award alimony would be limited to the provision of the statute. Our decisions are innumerable to the effect that the power of the Oregon court to grant separate maintenance or alimony upon divorce, is limited by the provisions of the statute. Howard v. Howard, 164 Or. 689, 103 P. (2d) 756 (1940); Noble v. Noble, 164 Or. 538, 103 P. (2d) 293 (1940); and many other cases.
“* * * But in the case of an absolute divorce terminating the marital ties, the duty of support no longer exists at common law, and in the absence of a statute continuing the obligation of maintenance beyond the dissolution of the marriage, it is difficult to find a basis for awarding permanent alimony. The better view would appear to be that the right to award permanent alimony on decreeing a dissolution of the marriage can be based solely upon express statutory provision. * * *”
None of the cases cited in support involved the power of a court of equity to award alimony after a foreign divorce on substituted service. They relate to cases in which the divorce is brought in a state in which there are statutory provisions concerning alimony when granted by the courts of that state. The
“* * * That a statutory provision, unless expressly declared to be exclusive, is not so is evident from the fact that equity frequently claims inherent jurisdiction over the subject of alimony, as where a wife is permitted to bring an action for alimony alone although she has previously been granted a divorce from her husband by a foreign court which was unable to award her alimony owing to lack of jurisdiction of both the person and property of the husband. Similarly, where a divorce has been obtained in another state by the husband in an ex parte proceeding, there being no jurisdiction of the person of the wife except by constructive service, she is allowed to maintain a separate action against him for the recovery of alimony; and equity assumes jurisdiction to award alimony where a separation has been previously granted by legislative enactment. Furthermore, the courts of a number of jurisdictions, upon well-reasoned grounds, claim that, aside from statute, equity has jurisdiction to award alimony in an independent suit for separate maintenance. Of course, in some jurisdictions, authority to award alimony is regulated entirely by statutory provisions which are deemed to be exclusive. It is obvious that if jurisdiction is otherwise lacking, it cannot be conferred by the consent of the parties.”
The foregoing considerations and authorities lead to the conclusion that the Oregon court sitting in equity has jurisdiction to determine whether or not alimony should be awarded in the case at bar.
It is significant to note that, notwithstanding the divergent views which are expressed in the majority and dissenting opinions, all are agreed that in equity and good conscience the wife should not be deprived
The majority holds that the decree of the lower court must be affirmed. However, as I have attempted to show, the plaintiff would still have a right to bring an independent suit for alimony on the authority of the cases cited. Why then cannot the lower court consider in this case both the statutory and the equitable rights of the parties?
The case is before a court of equity. The defendant by motion invoked its jurisdiction. Both parties appeared personally. Upon a showing by the defendant that the parties are no longer married, the court issued a show-cause order requiring the plaintiff to show why the separate maintenance decree should not be vacated. The plaintiff‘s position below was that the Nevada decree, by virtue of its own force, ends his duty to pay alimony. The defendant‘s position was that the plain-
Though the Nevada decree was not per se effective, the fact that the parties are no longer married is a material circumstance to which the Oregon court is required by its law to give consideration in determining whether the order for separate maintenance should be transformed into an order for alimony after divorce. The Oregon separate maintenance decree continues in force in any event until the Nevada decree has been brought to the attention of the Oregon court and until its effect is there determined. Although the decree of the lower court vacating the separate maintenance decree may have been based on an erroneous view of the law, still, for all we know, the decree may have been proper for reasons which were not presented to, or considered by the court. The separate maintenance decree was rendered nunc pro tunc as of February 1, 1944. The Nevada divorce was rendered on the 19th day of June, 1946, and the motion to vacate the separate maintenance decree was not filed until December, 1946. We do not know in what respect circumstances of the parties have changed. One or both of them may be remarried, and financial conditions may have changed. It is conceivable that the defendant who was granted the separate maintenance decree might no longer be entitled to it. It is also conceivable that she might be entitled to a smaller or to a larger allowance. One of the material circumstances which must be considered by the court is the fact that the marriage of the parties
If the inherent power of equity to grant alimony after a foreign divorce on substituted service is recognized, there would appear to be no distinction in principle between an independent suit for alimony brought after a foreign decree based on substituted service and a proceeding such as this to determine whether or not to continue an order for separate maintenance entered prior to the foreign decree. The issue in either case would be the same though the evidence may be different. In either case, before an Oregon court of equity would award or continue alimony, it would have to be satisfied, as of the time of the inquiry, that the facts are such that if the applicant for alimony had sued her husband upon personal service in Oregon she would have been found entitled to divorce and alimony. Slapp v. Slapp, supra. The public policy as declared by statute would properly control the equity court upon this issue. On the issue of fault the previous Oregon decree of separate maintenance should be considered binding as of the date thereof, but even upon that issue, as well as upon questions considering the present financial or marital condition of the parties, the court should hear evidence as to circumstances subsequent to the award of separate maintenance and down to the time of the hearing upon the husband‘s motion to terminate the separate maintenance decree. After securing his Nevada divorce the plaintiff moved the Oregon court for an order requiring the defendant to show cause why the maintenance decree should not be “modified, cancelled, set aside and terminated“. He showed one fact which required the court to recon
It would seem to be a futile act to affirm the lower court if, as I have indicated, the plaintiff would have an immediate right to bring an independent suit to establish her rights to alimony.
Equity has not lost its ancient power to give a remedy where it finds a right to which the law gives no adequate protection. In Williams v. Pacific Surety Co., 66 Or. 151, 127 P. 145, 131 P. 1021, 132 P. 959, 133 P. 1186, the court said:
”
Article 1, Section 10, of our Constitution provides that ‘every man shall have remedy by due course of law for injury done him in person, property or reputation,’ and in pursuance of this provision (Section 983, L. O. L.) [nowO. C. L. A., § 13-715 ] provides that ‘when jurisdiction is, bythe organic law of this state, or by this code, or by any other statute conferred upon a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of the proceeding be not specifically pointed out by this code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.’ This wipes out common-law procedure, as such, with all its delays and technicalities and leaves the court free to adopt such common-law procedure when in conformity with the spirit of the code, and to reject it when a procedure better calculated to facilitate * * * the administration of justice presents itself. * * *”
In Bartlett v. Bartlett, 175 Or. 215, 152 P. (2d) 402, this court had a somewhat similar problem. An issue concerning the custody of a child was raised by a proceeding in habeas corpus. We held that the full inherent power of equity is available, not only to award custody, but also to determine certain collateral matters concerning support. We said, “It is no great strain upon the rules of pleading to treat the return on the writ as an answer and cross bill“. In the Bartlett case we quoted with approval the following:
“‘When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.’
O. C. L. A. § 13-715 . Patterson v. Horsefly Irrigation District, 157 Or. 1, 15, 69 P. (2d) 282, 70 P. (2d) 36; Williams v. Pacific Surety Co., 66 Or. 151, 127 P. 145.”
“‘Courities which have a true conception of the philosophy of equity constantly reiterate the fact that equity meets all conditions; that human ingenuity and human affairs can not create a condition which the long arm of the court of equity can not reach if injustice or wrong would otherwise result. See Harrigan v. Gilchrist, 121 Wis. 127 (99 N. W. 909, 936); Rice v. Van Vranken, 132 Misc. 82 (229 N. Y. S. 32).’ Teachers’ Ret. Fund Ass‘n v. Pirie, 150 Or. 435, 445, 46 P. (2d) 105.”
In In re Pittock‘s Estate, 102 Or. 47, 201 P. 428, an issue was presented by a petition in the probate department of the circuit court. It was contended that the relief sought was not available in the probate court but could be had only by a suit in equity. Referring to the statute which abolished county courts and vested the circuit court with probate jurisdiction, this court said:
“* * * The act did not lessen the jurisdiction of the Circuit Court in such districts but increased it by the addition of probate jurisdiction, which was formerly vested exclusively in the County Courts. When this litigation was presented to the Circuit Court, that tribunal was acting not only with respect to the probate jurisdiction but also to the general jurisdiction originally vested in such courts.”
Although the facts in the pending case are different from those in the cases last cited, the principle of those cases is applicable here. The majority opinion neither accepts nor rejects the doctrine of inherent equitable power. It would seem that the existence vel non of that power is properly before the court, for if the power exists, every consideration of justice would lead to its exercise. The court of Chancery, having jurisdiction
It may be objected that the issue raised by the defendant‘s motion and by the show-cause order is not broad enough to permit consideration of the equities of the case, even if an independent suit would lie. If that be the situation, then I think we should remand the case to the circuit court with leave to both parties to plead further. It would not be the first time that this court has authorized amendments in the interest of justice in an equity court. Murray v. Lamb, 168 Or. 596, 115 P. (2d) 336, 124 P. (2d) 531; Enyart v. Merick, 148 Or. 321, 34 P. (2d) 629; Knapp v. Wallace, 50 Or. 348, 92 P. 1054.
We cannot reverse this case because to do so would revive a dead statutory separate maintenance decree as such. We should not affirm the decree because to do so would be to deprive the defendant of the right to have her case decided on the merits. Since we cannot reverse and should not affirm, I suggest the middle ground of a remand with permission to amend.
I realize that the suggested procedure would not have been approved under technical rules of pleading as once administered. The plaintiff‘s motion may of course be construed as mere prayer to be relieved of the duty to pay under the separate maintenance law, but, more realistically, it seems that what the defendant is really concerned about, and really asks for, is relief from the duty to pay. He comes into court with unclean hands relying on a legal theory to relieve him of an equitable duty. Equity looks with jaundiced eye at such a request.
Elton Watkins, of Portland, for the motion.
Joe P. Price and M. E. Tarshis, both of Portland, contra.
MOTION GRANTED.
LUSK, C. J.
This is a motion to recall the mandate and retax the costs. The opinion in this case was rendered November 30, 1948. Costs and disbursements were allowed to the appellant, although the decision was in favor of the respondent. On December 24, 1948, the appellant filed a petition for a rehearing which was denied on January 5, 1949. On January 14, 1949, the clerk issued a mandate which contained, among other provisions, the following: “It is further ordered and decreed that the appellant have and recover of and from respondent her costs and disbursements in this court taxed at $35.00.” On January 21, 1949, the appellant filed the aforesaid motion to recall the mandate and retax costs, accompanied by a statement of her costs and disbursements (commonly referred to as a cost bill) amounting in all to $430.00. In support of the motion there are affidavits of appellant‘s counsel in substance to the effect that he was under the impression that the time for filing the cost bill “would date from the decision of the court with reference to appellant‘s petition for rehearing.”
“No disbursements shall be allowed in the supreme court to any party unless he shall serve
on the adverse party or his attorney, and file with the clerk of said court, a verified statement showing with reasonable certainty the items of all costs and disbursements in said cause. Such statement shall be accompanied by proof of service thereof and shall be filed within 20 days, or such further time as may be allowed by the court, from the time an opinion is rendered in the cause in said court, or, if no opinion is handed down, then within 20 days from the giving of a decision by such court. The total of the items included in the statement of costs and disbursements thus filed, with the exception of items or amounts thereof not allowed by law or by rules of the supreme court, shall be entered by the clerk of said court as a part of the judgment or decree, in favor of the party entitled thereto, unless the adverse party within five days from date of service of such statement shall serve and file his objections thereto, which objections must also be verified. Appearance fees, trial fees and attorney fees shall be allowed as a matter of course to the party entitled thereto, without the filing of a statement of disbursements.”
The only opinion rendered in this cause was that rendered on November 30, 1948. That opinion embodied the only decision of the court within the meaning of the foregoing statute. The order denying the petition for rehearing was not a decision of the case but merely the refusal of this court to disturb the decision theretofore announced. It is clear that the twenty-day period provided by the statute within which the appellant might have served and filed her cost bill began to run on November 30, 1948, and that the time was not extended by pendency of the petition for rehearing. Empire Holding Co. v. Coshow, 150 Or. 252, 268, 41 P. (2d) 426, 43 P. (2d) 907, 45 P. (2d) 167; McFarlane v. McFarlane, 43 Or. 477, 487, 488, 73 P. 203, 75 P. 139.
There is no such implication, however, from the words “such further time as may be allowed by the court“. The word “further” in this context means “additional” (Funk & Wagnalls New Standard Dictionary), and there is no plain indication of legislative intention that the order allowing additional time must be made within the twenty-day period, as against the view that jurisdiction was conferred upon the court to make such an order after the expiration of that pe
This leaves only the question of whether the appellant has made a showing which will justify the court in granting the relief sought. Her attorney frankly acknowledges that the delay was due to his own misinterpretation of the statute. It can be urged in his favor that it could be plausibly argued that the order denying the petition for rehearing was a “decision” within the meaning of
There can be no question but that the court has jurisdiction to recall the mandate (Williams v. Pacific Surety Co., 66 Or. 151, 161, 127 P. 145, 131 P. 1021, 132 P. 959, 133 P. 1186; Krause v. Oregon Steel Co., 50 Or. 88, 91, 91 P. 442, 92 P. 810), and this would seem to be necessary in any event, as that document provides for the recovery of appellant‘s costs and disbursements in the sum of only $35.00. This sum is made up of an ap
It is, therefore, ordered that the mandate be recalled, and that the appellant‘s statement of costs and disbursements heretofore presented to the clerk be filed.